J-S45037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW VERHEYEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 326 EDA 2020

Appeal from the Judgment of Sentence Entered December 10, 2019

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0006603-2005

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 27, 2020

Matthew Verheyen (Appellant) appeals from the judgment of sentence 

imposed following his expulsion from the State Intermediate Punishment 

program (SIP).

1

 Additionally, Appellant’s counsel (Counsel), seeks to 

withdraw from representation pursuant to Anders v. California, 386 U.S. 

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 

2009). Upon review, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

The trial court recounted the factual and procedural history as follows: 

On December 15, 2005[, Appellant] pled guilty to one count 

of attempted criminal trespass,[2] a third-degree felony. The 

Affidavit of Probable Cause that was the factual basis for the plea 

states that on September 8, 2005 an Upper Darby police officer 

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1 61 Pa.C.S.A. §§ 4101-08.

2 18 Pa.C.S.A. §§ 901(a)/3503. 
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was called to the victim’s address. An attempted break-in was in 

progress. When the officer arrived he found a window to the 

residence broken and [Appellant] in the backyard. The victim 

reported that [Appellant] had tried to enter his residence and 

when confronted, [Appellant] tried to run away. [Appellant] 

threatened the victim with a glass bottle and attempted to “flick” 

blood onto him. [Appellant] was immediately taken into custody. 

On December 15, 2005[, Appellant] was sentenced to 

twenty-four months of probation. He was found to be in violation 

of his probation on May 18, 2011.[3] Probation was revoked and 

he was sentenced to twelve to twenty-four months of 

incarceration to be followed by three years of probation. 

On November 8, 2018 probation was again revoked and a 

sentence of one year of probation and twenty-four months of [SIP] 

was imposed. 

[Appellant] was expelled from the [SIP] program. On 

October [3], 2019[, Appellant] was sentenced to twenty to sixty 

months of incarceration with credit for time-served after a 

Gagnon II hearing. [Appellant] filed a motion for reconsideration 

on October 22, 2019.[4] The October [3, 2019] sentence was 

vacated to allow the [c]ourt time to schedule a hearing and to 

reconsider [Appellant’s] sentence before the thirty-day 

jurisdictional time expired. 

On December 10, 2019[,] the sentence of twenty to sixty 

months of incarceration with credit for time-served from January 

8, 2018 was again imposed. Because the credit for time-served 

was 701 days[, Appellant] had already served his minimum on the 

day that this sentence was imposed. A motion for reconsideration 

was not filed. 

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3 The Commonwealth states that Appellant violated his probation while serving 

consecutive probation on an unrelated case. See Commonwealth Brief at 2. 

4 The trial court notes that Appellant timely filed his motion for reconsideration 

of sentence pro se, but because he was still represented by counsel, the court 

forwarded the motion to Appellant’s counsel. Trial Court Opinion, 2/13/20, at 

2 n.2. Appellant’s counsel subsequently filed an omnibus post-trial motion,

which included a motion for reconsideration of sentence. 
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On January 9, 2020[, Appellant’s] counsel filed a timely 

Notice of Appeal. In response to an Order directing counsel to file 

a Statement of Errors Complained of on Appeal[,] counsel has 

stated his intent to file an Anders brief which will address 

[Appellant’s] challenges to the legality of the sentence imposed 

and the discretionary aspects of sentencing. 

Trial Court Opinion, 2/13/20, at 1-2 (citations to notes of testimony and some 

footnotes omitted; footnotes 2, 3, and 4 added). 

On June 23, 2020, Counsel filed an Anders brief, in which he avers that 

Appellant’s appeal is frivolous and requests permission from this Court to 

withdraw from representation. Appellant did not file a response to Counsel’s 

Anders brief or raise any additional claims.

We begin with the particular mandates that counsel seeking to withdraw 

pursuant to Anders must follow. These mandates and the significant 

protection they provide arise because a criminal defendant has a constitutional 

right to a direct appeal and to counsel on that appeal. Commonwealth v. 

Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We have summarized the 

requirements as follows:

Direct appeal counsel seeking to withdraw under Anders must file 

a petition averring that, after a conscientious examination of the 

record, counsel finds the appeal to be wholly frivolous. Counsel 

must also file an Anders brief setting forth issues that might 

arguably support the appeal along with any other issues necessary 

for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

retain new counsel, proceed pro se or raise any additional points 

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 
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the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate’s brief on 

Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to the content of an Anders

brief:

[T]he Anders brief that accompanies court-appointed counsel’s 

petition to withdraw ... must: (1) provide a summary of the 

procedural history and facts, with citations to the record; (2) refer 

to anything in the record that counsel believes arguably supports 

the appeal; (3) set forth counsel’s conclusion that the appeal is 

frivolous; and (4) state counsel’s reasons for concluding that the 

appeal is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statutes on point that have 

led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. When faced with a purported Anders brief, we 

may not review the merits of the underlying issues without first deciding 

whether counsel has properly requested permission to withdraw. 

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation 

omitted). If counsel has satisfied the above requirements, it is this Court’s 

duty to review the trial court proceedings to determine whether there are any 

non-frivolous issues that the appellant could raise on appeal. 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en 

banc).

Instantly, Counsel has complied with the requirements of Anders. 

Counsel filed a petition with this Court stating that after reviewing the record, 

he finds this appeal to be wholly frivolous. Petition to Withdraw as Counsel, 

6/25/20, ¶ 2. In conformance with Santiago, Counsel’s brief includes 
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summaries of the facts and procedural history of the case, and discusses the 

issues he believes might arguably support Appellant’s appeal. See Anders

Brief at 4-6. Counsel sets forth his conclusion that the appeal is frivolous and 

includes citation to relevant authority. Id. Finally, Counsel has attached to 

his petition to withdraw the letter he sent to Appellant, which enclosed 

Counsel’s petition and Anders brief. Petition to Withdraw as Counsel, 

6/25/20, Ex. A. Counsel’s letter advised Appellant of his right to proceed pro 

se or with private counsel, and raise any additional issues that he deems 

worthy of this Court’s consideration. Id. We thus proceed to Appellant’s 

substantive claims: 

a. Whether the trial court imposed an illegal sentence. 

b. Whether the trial court abused its discretion in imposing the 

sentence. 

Anders Brief at 3. 

In his first claim, Appellant challenges the legality of his sentence. “If 

no statutory authorization exists for a particular sentence, that sentence is 

illegal and subject to correction.” Commonwealth v. Infante, 63 A.3d 358, 

363 (Pa. Super. 2013) (citation omitted). “Our standard of review over such 

questions is de novo and our scope of review is plenary.” Commonwealth 

v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014) (citation omitted).

We have previously recognized that an SIP sentence is analogous to a 

sentence of probation. Commonwealth v. Flowers, 149 A.3d 867, 872-73 

(Pa. Super. 2016) (citation omitted). As such, upon expulsion from the SIP 
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program, the “sentencing alternatives available to the court shall be the same 

as were available at the time of initial sentencing.” 42 Pa.C.S.A. § 9771(b). 

Section 1103 of the Crimes Code provides, in relevant part: 

Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for 

second and subsequent offenses), a person who has been 

convicted of a felony may be sentenced to imprisonment as 

follows: . . . 

(3) In the case of a felony of the third degree, for a term which 

shall be fixed by the court at not more than seven years. 

18 Pa.C.S.A. § 1103(3). 

Here, Appellant was expelled from the SIP program and resentenced by 

the trial court to 20 months to 60 months of incarceration. See N.T., 

12/10/19, at 11. This sentence does not exceed the statutory maximum 

sentence for a third-degree felony. See 18 Pa.C.S.A. § 1103(3). Therefore, 

the trial court’s sentence is supported by statutory authority and we agree 

with Counsel’s conclusion that Appellant’s legality of sentencing claim is 

frivolous. See Anders Brief at 4 (“The sentence of 20 [] to 60 months [] is 

within the allowable sentencing terms for a third-degree-felony. As a result 

of the foregoing, it is [C]ounsel’s opinion that there are no issues of arguable 

merit with regard to the legality of the sentence imposed.”). 

In his second claim, Appellant challenges the discretionary aspects of 

his sentence. “The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for permission to 

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 
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2014). “An appellant must satisfy a four-part test to invoke this Court’s 

jurisdiction when challenging the discretionary aspects of a sentence.” Id. 

We conduct this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). 

As noted, Appellant filed a timely notice of appeal. However, he has 

failed to preserve his discretionary aspects claim because he did not raise it 

at sentencing or in a post-sentence motion.5 To challenge the discretionary 

aspects after resentencing, “[a] motion to modify a sentence imposed after a 

revocation shall be filed within 10 days of the date of imposition.” 

Pa.R.Crim.P. 708(E). The comment to Rule 708 states: 

Once a sentence has been modified or re-imposed pursuant to a 

motion to modify sentence under paragraph (E), a party wishing 

to challenge the decision on the motion does not have to file an 

additional motion to modify sentence in order to preserve an issue

for appeal, as long as the issue was properly preserved at 

the time sentence was modified or re-imposed. 

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5

In addition, Counsel did not include a concise statement of reasons relied 

upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Anders

Brief at 2-6. However, we have previously held that “[w]here counsel files an 

Anders brief, this Court has reviewed the matter even absent a separate 

Pa.R.A.P. 2119(f) statement.” Commonwealth v. Zeigler, 112 A.3d 656, 

661 (Pa. Super. 2015) (citations omitted). 
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Pa.R.Crim.P. 708(E) (emphasis added); see also Commonwealth v. 

Presley, 193 A.3d 436, 447 n.4 (Pa. Super. 2018). 

It is well-settled that issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a). “[I]ssues 

challenging the discretionary aspects of sentencing must be raised in a postsentence motion or by raising the claim during the sentencing proceedings. 

Absent such efforts, an objection to a discretionary aspect of a sentence is 

waived.” Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) 

(citations omitted).

The requirements of Rule 302 apply when counsel files an Anders brief. 

In Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016), counsel 

filed an Anders brief raising a discretionary aspects of sentencing claim, and 

we found waiver because he failed to preserve it at sentencing or in a postsentence motion. Id. at 888. 

Here, Appellant was initially resentenced on October 3, 2019. He then

filed a motion for reconsideration of sentence. In response, the trial court 

vacated Appellant’s sentence and scheduled a resentencing hearing for

December 10, 2019. At the conclusion of the hearing, the trial court reimposed Appellant’s sentence of 20 to 60 months of incarceration. See N.T., 

12/10/19, at 11 (“After hearing from [Appellant], as well as the probation and 

Commonwealth, the [c]ourt is in fact going to reinstate the original 

sentence.”). Appellant did not raise a discretionary sentencing claim with the 
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court when his sentence was re-imposed, id. at 1-12, nor did he file a postsentence motion following the December 10, 2019 hearing. Accordingly, we 

find waiver, and agree with Counsel that the issue is frivolous. 

Finally, our independent review reveals no other non-frivolous issues 

that Appellant could raise on appeal. See Dempster, 187 A.3d at 272. For 

all of the above reasons, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2020